fights for greater
economic equality in California and social justice in the increasingly
integrated global economy. We provide a systematic solution to enforce
the basic economic rights of California's workers and to collect unpaid
wages from employers who have previously escaped consequences for
illegally underpaying their employees. By developing new strategies to
enforce wage rights and educate workers, advocates, and the public, The
Wage Justice Center compels employers to redistribute the capital
obtained by violating workers’ rights laws. The Wage Justice Center's
unique approach of enforcing judgments and creating a permanent
enforcement mechanism for wage rights is part of the growing national
movement of organizations that combat the systemic inequality facing
America’s poorest workers.

When Ledbetter v. Goodyear Tire and
Rubber Co. was decided by the Supreme Court in late-May of this year,
commentators - both legal and nonlegal - immediately recognized the
obstacle that the decision poses for individuals suffering from
discrimination in pay .... What the[] efforts to mitigate the
immediate effects of Ledbetter miss, however, is that Ledbetter is part
of a much deeper and more potentially devastating conceptual shift that
is taking hold in employment discrimination law. This "insular
individualism" - the belief that discrimination can be reduced to the
action of an individual decisionmaker (or decisionmakers) isolated from
the work environment and the employer - renders the narrow legislative
attempts to overrule Ledbetter woefully incomplete. Without adequate
challenge, the entrenchment of insular individualism that Ledbetter
reflects is likely to have significant repercussions for the future of
employment discrimination law. In
this Essay, I seek to uncover the insular individualism in Ledbetter
and to map some of its potential consequences for antidiscrimination
law. I argue that Ledbetter - and the insular individualism that it
reflects - is likely to lead to at least two significant changes in
individual disparate treatment law: (1) a narrowing of the evidence
plaintiffs alleging individual disparate treatment are permitted to use
to make their case; and (2) a cutting back on employer vicarious
liability, both by providing exceptions to employer liability for what
are seen as errant or rogue discriminating employees, and, as in the
area of sexual harassment, by requiring victims of discrimination to
complain to their employers about discrimination early on, even when
the discrimination is not yet legally actionable. Although these
changes are on the immediate horizon (within the next year, the Court
will hear arguments in a case raising the first opportunity for such a
change, and other opportunities are likely to follow shortly), they are
not inevitable. After mapping some of the likely effects of insular
individualism, I propose several ways in which those who understand
insular individualism can work to weaken its influence.

In Alaska
v. EEOC, 07-70174 (9th Cir. Nov. 8, 2007), the Ninth Circuit took on a fairly obscure issue
of whether Congress validly abrogated the sovereign immunity of Alaska under
the 11th Amendment in passing the Government Employee Rights Act of 1991 (GERA).

The Equal Employment Opportunity Act of 1972 subjected state
and local governments to Title VII liability. However, the Act excluded
from protection elected officers and "any person chosen by such officer to
be on such officer's personal staff" and employees "on the policymaking
level" or serving the official as "an immediate adviser with respect
to the exercise of the constitutional or legal powers of the
office." 42 USC Section 2000e(f). In 1991, the Equal
Employment Opportunity Act of 1972 was amended by the Government Employee
Rights Act (GERA). GERA wiped out the exemption as to members of an
elected official's personal staff, those serving the official on a policymaking
level, and those serving as immediate advisers.

The court concluded that Congress did not validly abrogate
the states' 11th Amendment immunity when it passed GERA (at least as to the
level of employee at issue in this case). The court noted that "GERA
was enacted with no findings by Congress as to state practices of
discrimination against employees at this level of government." The
court noted additionally, "[i]t would be guesswork ... to suppose that a
widespread pattern of intentional discrimination on account of gender or race
existed among the fifty governors of the states as they selected staff assisting
them in the exercise of their office." Accordingly, the court
concluded "[w]e do not believe that GERA is a proportionate response to a
widespread evil identified as the predicate of this legislation."

I am no big fan of the Rehnquist Court's interpretation of
sovereign immunity under the 11th Amendment and the Congress' power to abrogate
that immunity under Section 5 of the Fourteenth Amendment and so it is not that surprising that I tend to agree
with the dissenting judge here that there was a valid abrogation:

As the Supreme Court explained in 1976 in Fitzpatrick v.
Bitzer, Title VII of the Civil Rights Act of 1964 expressly excluded the States
from its purview. 427 U.S. 445, 448-49 & n.2. The 1972 amendments to Title
VII,2 however, “made clear that [Title VII] was being extended to persons aggrieved by public
employers.” Id. at n.2. With regard to the States, the 1972 amendments extended
Title VII’s protections to “employees subject to the civil service laws of a
State government, governmental agency or political subdivision.” 42 U.S.C. § 2000e(f) . . . .

Fitzpatrick therefore concluded that “congressional
authorization to sue the State as employer” and “abrogate the immunity
conferred by the Eleventh Amendment” was “clearly present” in the 1972
amendments . . . .

Because the 1991 Act and GERA effectively amended Title VII
and extended its protections to certain previously excluded state employees,
Congress, in my view, must have intended GERA to incorporate the 1972
amendments’ express inclusion of state employers as possible respondents to
private Title VII claims for damages and the Supreme Court’s 1976 holding that
the 1972 amendments therefore validly abrogated the States’ Eleventh Amendment
immunity.

The case produced three different opinions on a highly-splintered court. I don't suspect this is the last we have heard about this
case or the issues under GERA it raises.

We are a little late on this one, but on October 31st, the House
passed (by a non-veto proof majority) the Trade and Globalization Assistance
Act (H.R. 3920). The bill was approved by a vote of 264-157 vote
and would amend the WARN Act (see two posts below) to require 90 days of notice
to workers (instead of the current 60 days) of impending job losses due to
plant closings and mass layoffs as the result of globalization.

The bill would also extend benefits to service industry and public-sector
employees who lose their jobs due to trade or offshoring of jobs. Additionally,
the bill would give impacted employees more time to receive continuation of
their health care coverage under COBRA.

The bill seeks to improve upon the the Trade Adjustment Assistance (TAA) Reform Act of 2002. The TAA program assists individuals who have become unemployed as a result of
increased imports or shifts in production to foreign countries. TAA-certified
workers may access a menu of services that include training, income support,
relocation allowances, job search allowances, and a health insurance coverage
tax credit.

I am not sure of the exact reasons, but the President has expressed objections to the
2007 bill. It is unclear when, or if, the Senate will take up the measure.

Well, I was just saying to Scott Moss yesterday that there
is not that much written on the Fair Labor Standards Act (FLSA), at least
outside of the recent glut of overtime class action suits.

Well, here is a recent case from the Sixth Circuit which points out that the
recently-enacted FLSA regulations do not follow the old rule of thumb for
white-collar exemptions that at least 50% of an employee's work must be in
exempt activities. Instead, the employee's primary duty under the job
duties test is dependent on a more totality of the circumstances analysis.

Thus, in Thomas
v Speedway SuperAmerica LLC (6th Cir. Oct. 30, 2007), the Sixth Circuit
applied these new regulations and found that an employee who spent 60% of her
time on non-managerial activities could still nevertheless qualify for the
executive employee exemption from the FLSA. Thus, the employer did not
owe the employee back overtime.

Under the Workplace Adjustment and Retraining Notification (WARN) Act, employers with 100
or more full-time employees must give 60 days notice when they engaged in a
qualified "mass layoff" or "plant closing." Although
60 days notice must be given, any period of the statutorily-required notice
period may be substituted by providing severance benefits in lieu of notice.

In Long v
Dunlop Sports Group Americas, Inc. , (4th Cir. Oct. 29, 2007), the Fourth
Circuit considered a case in which the employer failed to give employees 60
days' advance notice of a plant shutdown, but continued to pay full wages and
benefits to most workers for 60 days after the shutdown. Consistent with
WARN law, this payment of severance in lieu of notice satisfied the WARN Act.

More technically, the employees did not suffer an "employment loss"
for purposes of the statute because the Act defines "employment loss"
as employment termination, and an employee is not "terminated" if he
continues to receive full wages and benefits.

Robert Lee Hotz describes in this morning's Wall Street Journal a series of recent studies indicating that the rostral anterior cingulate cortex of the human brain (top photo) creates a pervasive bias toward optimism, a finding that is supported by behavioral studies. NYU neuroscientist Elizabeth Phelps explains:

If even half the time our actions work out well, our life is going to
turn out for the better. If you are pessimistic, you
are unlikely to even try.

There is, however, one occupational exception to this bias toward optimism:

Surveying law students at the University of Virginia, [Penn neuroscientist Martin] Seligman found that
pessimists got better grades, were more likely to make law review and,
upon graduation, received better job offers. There was no scientific
reason. "In law," he said, "pessimism is considered prudence."

The Army Times is reporting
that United States military reservists who have been increasingly
called upon to serve their country during the recent wars in Iraq and
Afghanistan are not getting government support in helping them to
return to the work once their duty is over:

Strained by extended tours in Iraq, growing numbers of military
reservists say the government is providing little help to troops who
are denied their old jobs when they return home, Defense Department
data shows.

The Pentagon survey of reservists in 2005-06,
obtained by The Associated Press, details increasing discontent among
returning troops in protecting their legal rights after taking leave
from work to fight for their country.

It found that 44 percent of
the reservists polled said they were dissatisfied with how the Labor
Department handled their complaint of employment discrimination based
on their military status, up from 27 percent from 2004.

Nearly
one-third, or 29 percent, said they had difficulty getting the
information they needed from government agencies charged with
protecting their rights, while 77 percent reported they didn’t even
bother trying to get assistance in part because they didn’t think it
would make a difference . . . .

Under [USERRA], military personnel are protected from job
discrimination based on their service and are generally entitled to a
five-year cumulative leave with rights to their old jobs upon their
return. Reservists typically file a complaint first with a Pentagon
office, the Employer Support of the Guard and Reserve, which seeks to
resolve the dispute informally.

If that effort fails, a person
typically can go to the Labor Department to pursue a formal complaint
and possible litigation by the Justice Department.

Perhaps this is the workplace equivalent of the Walter Reed
debacle. Just like this country cannot forget those who serve their
country once they are injured, it is also galling that those who
volunteer for their country are not being protected from employment
discrimination.

This Article is a follow-up study to
Professor Schultz's classic Article, Telling Stories About Women and
Work: Judicial Interpretations of Sex Segregation in the Workplace in
Title VII Cases Raising the Lack of Interest Argument (1990). We
provide quantatitative and qualitative analyses of the universe of
Title VII cases in which employers sought to defend allegations of race
or sex discrimination by arguing that racial minorities or women lacked
interest in the work at issue.

Several
striking patterns emerge from the data. In race discrimination cases,
the lower federal courts almost universally rejected the lack of
interest defense before 1977, but after that judges began to accept the
argument with some frequency - and more often than they did in sex
discrimination cases. This change is not attributable to an increase in
Republican judges. Both Republican and Democratic judges - and judges
appointed by the most liberal Democratic Presidents - began to accept
the lack of interest argument with some frequency after 1977. As other
scholars have suggested, it appears that the late 1970s represented a
turning point in antidiscrimination law: Our analysis suggests that the
liberal consensus on race broke down, and the federal courts became
more willing to accept neo-conservative explanations for racial
segregation in employment.

In sex discrimination cases, by
contrast, the courts' willingness to accept the lack of interest
defense over time remained stable over time. Remarkably, however,
courts treated the very same types of evidence differently in sex
discrimination cases and race discrimination cases (at least when
considered in the aggregate. For example, anecdotal evidence of
discrimination significantly helped plaintiffs in sex discrimination
cases, but not in race discrimination cases. Conversely, evidence of
past discrimination by the employer helped plaintiffs in race
discrimination cases, but not sex discrimination cases. These
differences have become minimized after 1977, as the courts have begun
to regard evidence produced by race discrimination plaintiffs with the
same sort of skepticism with which they have historically regarded the
evidence produced by sex discrimination plaintiffs.

I would be interested in hearing what impact, if any, Vicki believes the forthcoming Mendlesohn "Me Too" employment discrimination case might have on these empirical findings.

Sen. Kennedy intends to introduce the measure in the Senate shortly and reports are that a properly worded bill could get enough Republican backing to pass. However, the House vote was well short of the 2/3 majority needed to override a possible veto, so the Senate's actions may be not matter in the end.

Although ENDA is certainly a compromise measure that could be much stronger, I'm still of the belief that something is better than nothing. Of course, there still may be nothing if there's a veto, so stay tuned.

It appears from the transcript that the Court is most annoyed with the EEOC in its inability to get its act together whether it comes to its regulations and forms dealing with charges of discrimination.

The AP reports the harsh words the Justices had for the administrative mess which is the EEOC:

The justices came down hard on the Equal
Employment Opportunity Commission in a case that was argued Tuesday
about whether an age discrimination lawsuit against FedEx Corp. can
proceed.

At issue is whether the EEOC's
failure to notify FedEx about a complaint filed by FedEx courier
Patricia Kennedy and 13 other employees should lead to the dismissal of
the lawsuit . . . .

Chief Justice John Roberts said he agreed that
the law requires FedEx to be notified about a complaint before a
lawsuit is filed so that the company can investigate and attempt to
resolve it before lawyers and judges intervene.

Justice
Antonin Scalia was even more pointed about the EEOC. "My main concern
is to do something that will require the EEOC to get its act in order
because this is nonsense," Scalia said.

Ouch! But it is not all the EEOC's fault. This is an agency that has been perpetually underfunded, especially during Republican administrations and has not been given the ability to carry out its statutory mandate in an efficient and effective manner.

I wouldn't be surprise to see the Court apply the doctrine of equitable tolling, from TWA v. Zipes, to allow the late filed charge here by the plaintiff since it was the government's fault that the defendant did not get notice of the charge.

I'm with Paul Mollica on this one and think, "[t]he Court appeared in no mood to punish an employee whose charge the
EEOC failed to publish to the other side. As Chief Justice Roberts
queried, 'Why should he suffer the categorical sanction of dismissal
simply because it's a little unfairness to you?'"

Trades Union Congress (TUC), a labor union in the UK, has developed a facebook application called My Union for union members. Members can add a trade union badge to their profile, and can see which unions their friends are members of. The application is currently available only for UK unions, but TUC expects to make it available to American unions in the near future. Hat tip: Work-Related Blogs and News.

For an enlightening description of yesterday's oral arguments in Federal Express v. Holowecki, see Paul Mollica's Daily Developments in EEO Law. Prior to oral arguments, I would have guessed the Court would give deference to EEOC regs, but Paul doesn't think that'll happen.

As Paul posted recently, the FLSA is increasingly a source of litigation. Now comes a reminder that state wage and hour laws may be important too--this time in a case against Staples. The office supply store has just signed off on a settlement for a whopping $38 million for state overtime claims brought by a group of managers. As noted in BNA's Daily Labor Report (subscription required), the managers argued that they were misclassified as executive employees exempt from the state's overtime provisions. The plaintiff's attorney, Matthew Righetti, "called the
settlement 'remarkable' and said it was among the largest ever in a
dispute over the state law's executive exemption." What's likely remarkable as well is his share of the settlement which, of course, is an important factor in the recent prominence of these cases. As long as payments like this still occur, don't expect a decrease in this trend any time soon.

Today at 11 a.m. EDT, the U.S. Supreme Court will hear its first employment case of the term in Federal Express v. Holowecki (our previous coverage is here), a case concerning whether the filing of an EEOC intake questionnaire can satisfy the administrative exhaustion requirement under the Age Discrimination in Employment Act (ADEA). My friend and fellow blogger, Paul Mollica, of Daily Developments in EEO Law, has been involved with this case.

No, I'm not in LA. Gotta teach employee benefits today in Oxford, but I have a knowledgeable source familiar with the situation up close and personal.

My source writes:

You'd
be getting a kick out of the action in this town today.

"Are
you ready to fight? Damn right!"

"On
strike, shut 'em down, Hollywood's
a union town!"

The
political dynamics out here right now are absolutely incredible.
Teamsters are siding with [the Writer's Guild] WGA, [Screen Actor Guild] SAG's siding with WGA in principle (but only
when it doesn't conflict with existing contracts), and [Director's Guild] DGA is as silent as
possible. The people who seem most screwed are TV showrunners - weird
executive hybrids that usually got their start as writers and still perform
writing duties, but also "run" a television show as producer. Most of
these are in the WGA, and it's ridiculously interesting to see which ones are
going to work and performing "non-writing" duties and which ones are joining
their fellow writers in the picket lines.

I got lucky today - didn't have to cross a line
to get into my office. I've got to admit, it'd feel pretty awkward in
that situation: I may not be a professional writer at this point in my life,
but I've always been a writer. My love for the existing Hollywood
architecture and my love for the craft of storytelling have finally hit an
impasse. "Lucky" is a perfect word for someone like me at a time like
this. I get to see where both sides take this one.

Plaintiff sued for age discrimination on behalf of decedent-employee's estate; employer moved to compel arbitration. A provision in the arbitration agreement provided:

[Y]ou and Capitol shall each have the right and obtain the following discovery, without permission from the Arbitrator: • up to three (3) depositions; • relevant documents from the other party; • relevant documents from third parties pursuant to subpoena. Additional discovery may be authorized by the Arbitrator, except that other forms of written discovery (i.e. interrogatories and requests for admission) must be mutually agreed to by you and Capitol. The Arbitrator shall refuse additional discovery if he or she determines that the requested information is privileged, irrelevant, duplicative, burdensome, or equally available to the requesting party.

The court held that this discovery provision was substantively unconscionable in two ways. First, the court held that the 3-deposition limit was unconscionable, even though the arbitrator had the authority to permit additional depositions, because the "plaintiff is initially limited in identifying or accessing people who work for the employer and may have took [sic] part in the employment decision." I'm not sure where the court found this restriction, because it's not in any part of the arbitration agreement that the court quoted. If this restriction was in the arbitration agreement, then the court was right to strike it, but if not, most courts would say that the arbitrator's ability to authorize additional discovery would make the presumptive 3-deposition-limit reasonable.

Second, the court held that the restrictions on interrogatories and requests for admission were substantively unconscionable because such “an important avenue of discovery is potentially unavailable to plaintiff and is not subject to review by a disinterested third party.” I agree with the court on this one -- courts tend to uphold arbitration agreements giving discretion over discovery to the arbitrator, but strike agreements imposing absolute restrictions.

Employment arbitration cases discussing discovery restrictions are few
and far between, but because employers usually control access to the
vast majority of information surrounding employment decisions,
discovery restrictions can have a major impact on an employee's ability
to prove her case.

The court severed the offending clauses and sent the case to arbitration. Here, I think, is the bigger problem: the employer has no incentive to re-draft its discovery provisions. Courts should impose a penalty on employers -- at the very least, striking the entire arbitration agreement and imposing fees and costs -- who draft lopsided arbitration agreements. Otherwise, employers have an incentive to draft lopsided agreements that scare employees away from enforcing their statutory employment rights.

Workplace Horizons reports that the House Rules Committee voted 9-3 last night to send ENDA to the House floor. Amendments to be discussed on the floor would (1) make the ENDA religious exemption parallel to Title VII, (2) incorporate the definition of marriage in the Defense of Marriage Act, (3) remove the prohibition on employers conditioning employment on a person being married or being eligible to be married, and (4) extend ENDA protection to gender identity.